September 20, 2022

BY ELECTRONIC MAIL DELIVERY

Office of General Counsel

Attn: Lisa J. Stevenson, Esq.

Acting General Counsel

Federal Election Commission

1050 First Street NE

Washington, DC 20463

Re: Advisory Opinion Request 

Dear Ms. Stevenson:

Pursuant to 52 U.S.C. § 30108, we seek an advisory opinion on behalf of DSCC, Bennet for Colorado,

and People for Patty Murray. DSCC has observed an expanded use in the regulated community of the 

account reserved for “the preparation for and the conduct of election recounts and contests and other 

legal proceedings”1(“Legal Proceedings Account”) to pay for television advertisements. 

Accordingly, it seeks the Federal Election Commission’s (the “FEC’s” or “Commission’s”) guidance 

on the scope of the kinds of communications that qualify as permissible fundraising expenses for the 

Legal Proceedings Account. Specifically, the DSCC seeks this opinion to confirm the extent to which 

the Legal Proceedings Account may be used for television advertisements that feature a federal 

candidate, but also include a solicitation for the Legal Proceedings Account. Bennet for Colorado and

People for Patty Murray seek guidance on the extent to which a federal candidate may lawfully appear 

in such communications and provide input on the communications. Because Senators Bennet and 

Murray are up for re-election in the November 8, 2022 election, which is within 60 days, we 

respectfully request a response within 20 days.2

I. FACTUAL DISCUSSION

DSCC is the national political party committee established pursuant to 52 U.S.C. § 30101(14) 

dedicated to electing Democrats to the U.S. Senate. Pursuant to federal law, DSCC maintains a

segregated bank account out of which it pays for expenses in connection with recounts, contests, and 

other legal proceedings.3 Senator Bennet is a member of the US Senate and the Democratic nominee 

for U.S. Senate in the November 8, 2022 general election in Colorado; Senator Murray likewise a 

sitting Senator and is the Democratic nominee for U.S. Senate in the November 8, 2022 general 

election in Washington State (collectively, the “Candidates”). Bennet for Colorado and People for 

Patty are their principal campaign committees (collectively, the “Campaigns”).

1 52 U.S.C. § 30116(a)(9)(C).

2

Id. § 30108(a)(2).

3 See id. § 30116(a)(9)(C).

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Based on the legislative history surrounding the addition of the Legal Proceedings Account to the 

Federal Election Campaign Act of 1971, as amended (the “Act”), and FEC precedent, DSCC may

pay the costs to solicit funds for its Legal Proceedings Account using money in that account. 

However, there is little guidance in the Act, its legislative history, and from the Commission about

any content restrictions that apply in order for the cost of a solicitation to qualify as “solicitations for 

its Legal Proceedings Account.” Consequently, DSCC seeks guidance on whether its plans for two 

types of public communications are permissible, and the Campaigns seek confirmation that they may 

coordinate with DSCC on these communications. 

Solicitation 1: DSCC wants to know if it would be permissible to use funds in the Legal Proceedings 

Account to pay for the production and airing of television advertisements that would be disseminated 

in states across the country, including Colorado and Washington, that raise funds for the Legal 

Proceedings Account by highlighting the pressing need to protect the right to vote through affirmative 

voting rights litigation as well as prepare for potential recounts and contests.

These communications would:

1. Feature one or more U.S. Senate candidates, including the Candidates. DSCC wants to 

include recognizable political figures in the communications because it believes it will make 

viewers of the communications more likely to donate to the cause. Accordingly, the 

advertisements may air in the jurisdiction in which the featured candidate(s) are candidates

for re-election as well as other jurisdictions where the featured candidate(s) are not candidates

for federal office. 

2. Not publish or republish candidate materials. 

3. Not expressly advocate the election or defeat of a clearly identified candidate for federal 

office.

4. Focus on the topic of voter disenfranchisement as a pressing issue heading into the 2022

general election.

5. Include a clear solicitation asking viewers to donate to the Legal Proceeding Account so that 

DSCC can protect the right to vote in court and prepare for potential recounts and election

contests. The solicitation in the advertisement would be both oral and written. The written 

solicitation will appear as a webpage link displayed on the screen (in a font, color and size 

that is easily readable) directing viewers to an online contribution page. The oral solicitation 

will be spoken by a narrator and refer generally to donating via the onscreen webpage link.

The online contribution page would in turn clearly state that all funds accepted through the 

page are allocated to DSCC’s Legal Proceedings Account. To the extent a donor’s 

contribution via the designated contribution page exceeds their limit to the Legal Proceedings 

Account, any excess portion of the contribution will be refunded, not allocated to another 

account. 

6. Be coordinated, including the timing, content, and placement with the Democratic Senate 

candidate appearing in the advertisement.

Solicitation 2: Though the DSCC has serious misgivings as to its legality, DSCC also seeks to know 

if it would be permissible to use funds in the Legal Proceedings Account to pay for the production 

and airing of television advertisements that expressly advocate for or against one clearly identified

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candidate for federal office and/or address policy issues featuring a federal candidate while also 

including a solicitation for the Legal Proceedings Account. 

These communications would: 

1. Feature a single candidate seeking re-election in November 2022 in the jurisdiction where the 

advertisement is disseminated. The advertisement would be fully coordinated with the 

Democratic Senate candidate in the jurisdiction.

2. Focus on one or more policy issues central to the November 8, 2022, general election in the 

jurisdiction of distribution. The communication would either discuss a Democratic candidate and 

promote or support the candidate and their policy position(s), or discuss a Republican candidate 

and attack or oppose the candidate and their policy position(s). DSCC believes featuring high 

profile candidates and policy positions will help motivate viewers to contribute to the Legal 

Proceedings Account. 

3. Not publish or republish candidate materials. 

4. Might in some circumstances expressly advocate the election or defeat of a clearly identified 

candidate for federal office.

5. At the end of these advertisements, there will be a voiceover that states simply, “Donate today.” 

The visual will include a written-out link to an online webpage (in a font, color and size that is 

easily readable) such as “Donate at dscc.org/urgent” Although these communications will not 

mention the Legal Proceedings Account or any legal proceedings, the contribution page would 

clearly state that all funds accepted through the page are allocated to DSCC’s Legal Proceedings 

Account. To the extent a donor’s contribution via the designated webpage exceeds their 

contribution to the Legal Proceedings Account, any excess portion of the contribution will be 

refunded, not allocated to another account. 

6. Be coordinated, including the timing, content, and placement with the Democratic Senate 

candidate whose race is featured in the advertisement.

II. QUESTIONS PRESENTED

1. May DSCC use funds in its Legal Proceedings Account to pay for television advertisements

following the description for Solicitation 1? May the Campaigns coordinate with DSCC on such 

communications by having input on the content, timing, and placement of the communications? 

2. May DSCC use funds in its Legal Proceedings Account to pay for television advertisements 

following the description for Solicitation 2? May the Campaigns coordinate with DSCC on such 

communications by having input on the content, timing and placement of the communications?

III. LEGAL ANALYSIS

A. Legal Background

Pursuant to the Consolidated and Further Continuing Appropriations Act of 2015 (the “Appropriations 

Act”), national political party committees are permitted to raise funds into a separate account in order 

“to defray expenses incurred with respect to the preparation for and the conduct of election recounts and 

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contests and other legal proceedings.”4 This Legal Proceedings Account has its own contribution limit 

separate from each national party committees’ general account, and disbursements from the Legal 

Proceedings Account do not count against a national party committee’s coordinated party expenditure 

limit.5

The drafters of the Appropriations Act, then-Speaker of the House John Boehner and then-Senate 

Majority Leader Harry Reid, declared the intent of the Legal Proceedings Account in a joint Explanation 

of Congressional Intent (the “Explanation”). In the Explanation, they stated as follows: 

The third account, described in section 315(a)(9)(C) of FECA (as amended), is intended 

to permit a national committee of a political party (including a national congressional 

campaign committee of a political party) to defray expenses incurred with respect to the 

preparation for and the conduct of election recounts and contests and other legal 

proceedings, including the costs of fundraising for this segregated account, using 

funds raised under a separate limit. Section 101 of Division N is not intended to modify 

Federal Election Commission precedent permitting the raising and spending of [recount] 

funds by campaign or state or national party committees. See FEC Advisory Opinions 

2006–24, 2009–4. Section 101 is also intended to permit the national parties to use such 

funds for costs, fees, and disbursements associated with other legal proceedings.

Finally, under current law coordinated limits do not apply even absent these provisions 

to the existing accounts as described in section 315 of FECA and therefore it is the intent 

of the amendments contained herein that expenditures made from the accounts described 

in section 315(a)(9) of FECA, many of which (such as recount and legal proceeding 

expenses) are not for the purpose of influencing federal elections, do not count against 

the coordinated party expenditure limits described in section 315(d) of FECA.6

B. Legal Conclusions

When Congress enacted the Appropriations Act, it made clear that the costs of fundraising for a national 

party committee’s Legal Proceedings Account can be paid from the Legal Proceedings Account.

Requestors seek the Commission’s guidance as to the scope of the kinds of communications that qualify 

as permissible fundraising expenses for the Legal Proceedings Account. Specifically, Requestors ask 

whether the communication must at least, in part, relate to and solicit funding for “the preparation for 

and the conduct of election recounts and contests and other legal proceedings.”

The Act itself states that disbursements from the Legal Proceedings account are not party coordinated 

expenditures.7 Therefore, provided that the purpose of a communication is to solicit funds for the 

account, based on an objective standard, it appears that DSCC can coordinate with candidates, as 

described above, on communications financed with its Legal Proceedings Account without triggering 

coordinated party spending authority. 

Solicitation 1: The communications would focus on litigation related to voter disenfranchisement, an 

issue that DSCC is already addressing and will continue to address using funds in its Legal Proceedings 

Account. The communications would explicitly ask for donations to help pay for its efforts around that 

4

Id.

5

Id. § 30116(d)(5).

6 160 Cong. Rec. H9286 (daily ed. Dec. 11, 2014) (statement of Rep. Boehner) (emphasis added); 160 Cong. Rec. S6814 

(daily ed. Dec. 13, 2014) (statement of Sen. Reid) (emphasis added).

7 52 U.S.C. § 30116(d)(5)

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issue. The inclusion of a federal candidate, including the Candidates, would help provide context for 

viewers as to why this work is important this election cycle. Based on these factors, the clear purpose of 

such an expenditure is to raise money for the Legal Proceedings Account and an objective viewer would

undoubtedly regard the purpose as such.

Solicitation 2: Solicitation 2 does not relate to “the preparation for and the conduct of election recounts 

and contests and other legal proceedings,” however, it still raises donations for the Legal Proceedings 

Account. The communications would conclude by asking for a donation by displaying a written online 

webpage. When the viewer goes to the online link to make a donation, the page will explain that the 

money raised is for DSCC’s Legal Proceedings Account. Therefore, the donor would learn how their

contributed funds can be used on that website. Because these communications would expressly advocate 

for or against candidates or include policy positions about candidates, are coordinated with those 

candidates, and would be disseminated in the jurisdiction where they are running, they raise serious 

concerns that they would later be deemed illegal by the Commission or in a criminal case. Thus, out of 

prudence, DSCC and the Candidates seek an advisory opinion before engaging in this activity . 

Accordingly, DSCC and the Campaigns urge the Commission to answer their first question in the 

affirmative and provide a clear answer to their second question so they can engage in the proposed 

conduct without fear of civil and criminal enforcement. Should the Commission have any questions 

about this advisory opinion request as it develops its response, please do not hesitate to contact the 

undersigned. 

Very truly yours,

Jacquelyn K. Lopez

Rachel L. Jacobs

Shanna M. Reulbach

Jonathan A. Peterson

Counsel to DSCC, Bennet for Colorado, and People for Patty Murray 

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From: Jacquelyn Lopez

To: Robert Knop; Jonathan Peterson

Cc: Heather Filemyr; Neven Stipanovic

Subject: RE: Pre-AOR 529 (DSCC, Bennet for Colorado, and People for Patty Murray)

Date: Friday, September 23, 2022 5:01:34 PM

Hi Mr. Knop,

Please see below.

1. In light of the New York Times article of September 21, 2022, please confirm that

requestors have submitted this request to seek guidance about their own proposed future

activity and not about the past actions or ongoing activity of any third party.

Confirmed. Requestors seek the Commission’s guidance as to the legality of the activities specified in

the request. Since the creation of the Legal Proceedings Account, as part of the Consolidated and

Further Continuing Appropriations Act of 2015, the Commission has failed to promulgate regulations

on the permissible use of the account. We are forty five days away from the fourth federal election in

which the regulated community has been forced to operate without such guidance from the

Commission. The advisory opinion process is intended precisely to allow organizations like the

Requestors to obtain guidance upon which they may rely prior to engaging in activities that could

otherwise be deemed a violation of federal law.

 

2. Please provide sample language that would be used in Solicitation 1 or provide additional

information about the contours of the contents of that Solicitation.

Solicitation 1 will focus on the issue of voter suppression and will make no mention of any political

party. Requestors also wish to stipulate that the funds raised through the solicitation would be spent

exclusively on legal proceedings that comply with the permissible uses of the Legal Proceedings

Account.

3. Would disclaimers be provided in the television advertisements for Solicitations 1 and 2?

Yes, the advertisements would comply fully with 52 U.S.C. § 30120 and 11 C.F.R. § 110.11.

Thank you,

Jackie

Jacquelyn (“Jackie”) Lopez

Elias Law Group LLP

Partner

10 G St NE Ste 600

Washington DC 20002

202-968-4514

jlopez@elias.law

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CONFIDENTIAL: This email may contain privileged or confidential information and is for the sole use of the intended

recipient(s). Any unauthorized use or disclosure of this communication is prohibited. If you believe that you have received

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From: Robert Knop < > 

Sent: Thursday, September 22, 2022 8:25 PM

To: Jacquelyn Lopez <jlopez@elias.law>; Jonathan Peterson <jpeterson@elias.law>

Cc: Heather Filemyr < >; Neven Stipanovic < >

Subject: Pre-AOR 529 (DSCC, Bennet for Colorado, and People for Patty Murray)

Dear Ms. Lopez and Mr. Peterson:

Thank you for speaking with me and my colleague, Heather Filemyr, about your letter

requesting an advisory opinion on behalf of the Democratic Senatorial Campaign Committee,

Bennet for Colorado, and People for Patty Murray, received by this office on September 20,

2022. As discussed, we have determined that your letter does not yet qualify as a complete

advisory opinion request, and we need the following additional information:

1. In light of the New York Times article of September 21, 2022, please confirm that

requestors have submitted this request to seek guidance about their own proposed

future activity and not about the past actions or ongoing activity of any third party.

2. Please provide sample language that would be used in Solicitation 1 or provide

additional information about the contours of the contents of that Solicitation.

3. Would disclaimers be provided in the television advertisements for Solicitations 1 and

2?

Your response may be considered to be part of the advisory opinion request; if so, it will be

posted on the Commission’s website along with your letter received on September 20, 2022.

Please let us know if you have any questions.

Thank you.

Bob

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